Evidence update: prompt access to lawyers
[6 June 2023] – Under Israeli military law a detainee has the right to consult with a lawyer prior to interrogation.[1] There are exceptions but generally these do not apply to children. A detainee must also be informed of the right prior to questioning. In 2006, Israel's Supreme Court confirmed that the right to promptly consult with a lawyer is a fundamental right.[2] Regardless, for years the military authorities systematically denied children access to lawyers until after the interrogation process was concluded, and in many cases, coerced confessions were obtained.
In 2012/13 two reports on the treatment of children in Israeli military detention were published highlighting, among other things, the lack of prompt access to lawyers. The first report, issued by a delegation of lawyers, recommended that the child's right to consult with a lawyer prior to interrogation must be respected and any breach should result in the discontinuance of the prosecution and the child's immediate release. The second report, published by UNICEF, recommended that each child should have prompt access to a lawyer, and the lawyer should be physically present throughout the interrogation.
Following the release of these reports Israel’s Ministry of Foreign Affairs stated that it would work to implement the reports' recommendations and delegated the task to the military prosecutor in the West Bank.[3] In late 2013, the military prosecutor informed UNICEF that the Israeli Police were now issuing a revised Arabic text to notify children arrested for alleged security offenses of their rights prior to interrogation, including the right to legal counsel.[4]
Notwithstanding this development, UNICEF reported in 2015 that it was in possession of 208 affidavits collected from children detained in 2013 and 2014, of which 78 percent reported not being adequately notified of their legal rights, in particular the right to counsel.
During the intervening 10 years, MCW has collected 1,044 testimonies from Palestinian children detained by the Israeli military in the occupied West Bank. This body of evidence indicates that 63 percent of children continue to be denied this basic legal right. In the 37 percent of cases where children do consult with a lawyer prior to interrogation, the evidences indicates that:
- Almost all consultations are by phone, not in person, and last less than several minutes;
- In many cases the phone is on loud speaker with the interrogator present; and
- Only in a few cases is a child provided with a written statement regarding his/her rights prior to interrogation.
The following cases from 2022/23 are fairly representative of the 500-1,000 Palestinian children detained each year by Israeli forces in the occupied West Bank and who had access to a lawyer prior to interrogation:
F.F.M.I. (16 years) - "A soldier removed the blindfold but kept the handcuffs on. Before questioning me he phoned a lawyer and allowed me to speak to him. The lawyer told me to remain silent and not to confess. The interrogator was listening to the conversation and told me not to take the lawyer’s advice because if I did I was going to end up in a small cell in solitary confinement and won’t ever see the sun again."
H.D.H.D. (16 years) - "Then a soldier removed the blindfold and the hand ties and took me to an interrogation room. It was around midnight. The interrogator was in police uniform and had a camera in the room. He phoned a lawyer and allowed me to speak to him. The lawyer told me to take care of myself and said he had spoken to my parents and told me they were fine. The conversation lasted for a few minutes and the interrogator was listening."
I.J.I.M. (14 years) - "On the third day at Ramleh I was taken for interrogation. Before interrogating me, the interrogator handed me a phone to speak to a lawyer. The lawyer told me to remain silent even if the interrogator yells at me. He told me he was going to represent me in court and told me not worry. The conversation lasted for about a minute. The interrogator did not inform me of my right to silence and told me I had to answer all his questions."
A.M.H.S. (16 years) - "The interrogator was in civilian clothes. He had a camera and a voice recorder on his table. He asked me whether I remembered him and I told him I did from a previous arrest. Then he phoned a lawyer and allowed me to speak to him. The lawyer told me not to worry and not to sign any documents. The interrogator was listening on speaker phone and the conversation lasted for about two minutes."
J.M.H.B. (15 years) - "At around 1:00 a.m. a soldier removed the tie and the blindfold and took me for interrogation. The interrogator was in an Israeli police uniform and questioned me via an interpreter because she did not speak any Arabic. She was in her twenties. The interrogator phoned a lawyer for me before she started to question me. The lawyer told me I was going to be interrogated and that it was not going to be a big deal. He also told me I was going to be released if all goes well."
B.A.M.I. (12 years) - "At around 7:00 a.m. I was taken for interrogation. The interrogator was overweight and wearing civilian clothes. He removed the blindfold but kept me tied. He phoned a lawyer and I spoke to him. The lawyer asked me whether I was suspected of throwing stones and I said yes. Then he told me not to confess. The interrogator was listening and the conversation lasted for about a minute."
T.M.T.S. (14 years) - "The interrogator did not remove the tie or the blindfold. He phoned a lawyer for me and allowed me to speak to him. He then left the room. The lawyer told me to take care of myself and not to confess. He spoke to me for about a minute. Then, without informing me of my right to silence, the interrogator threatened to trash our house if I did not confess."
M.I.M.A. (14 years) - "The interrogator asked me if I wanted to speak to a lawyer. I thought a lawyer would cost money which my father cannot afford. I told the interrogator I could not afford a lawyer but he told he would call a lawyer paid for by an NGO. Then he called a lawyer and allowed me to speak to him. The lawyer told me to tell the interrogator I only go to school and back, nowhere else. The call was on speakerphone and the interrogator heard everything."
F.O.A.M. (16 years) - "At around 6:00 a.m. I was taken to the police station in Binyamin settlement. At the police station I was left in a room until around noon before being taken for interrogation. Before questioning me, the interrogator called a lawyer and allowed me to speak to him. The lawyer told me not to worry because the interrogator was not allowed to beat me. The conversation lasted for about a minute and the interrogator left the room."
H.S.H.A. (16 years) - "The interrogator removed the blindfold but kept me tied. He was in civilian clothes and had a camera in the room. He did not inform me of my right to silence. He called a lawyer for me and allowed me to speak to him. The lawyer told me to tell the interrogator what had happened and told me not to worry. We spoke for about three minutes and the interrogator was listening because he turned the speaker phone on. "
Q.I.A.R. (16 years) - "Whenever I fell asleep the soldiers kicked me to wake me up. At around 3:00 a.m. I was taken for interrogation. The interrogator called a lawyer for me and allowed me to speak to him. The lawyer told me to tell everything that had happened to me in court. The conversation lasted for about two minutes and the interrogator was listening."
A.B.M.K. (14 years) - "The following day I was tied and taken for interrogation. The interrogator did not speak Arabic and questioned me through an interpreter. She phoned a lawyer and allowed me to speak to him. The lawyer told me not to be scared and to answer the questions to the point, no more and no less. He spoke to me for less than a minute. At first the interrogator was listening but then she told me to turn the speaker phone off."
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[1] Under article 56 of the Security Provisions Order (Military Order No. 1651) (the Order) a detainee has the right to consult with a lawyer (exceptions apply) and article 136c provides explicit instructions to investigators as to how children should be notified of this right.
[2] Yisascharov v The Head Military Prosecutor (2006)
[3] The Military Prosecutor in the West Bank at the time was Lt. Col. Maurice Hirsch, a resident of an illegal West Bank settlement. In November 2016, Hirsch left his post as Military Prosecutor in order to take up a consultancy position with the non-governmental organisation NGO Monitor.
[4] UNICEF Bulletin No. 2 (February 2015) – available at https://is.gd/miEAIO
